Validity of CMM Court as Special Court for trial of Italian Marines

The case involving two Italian marines (Massimiliano Latorre and Salvatore Girone), who were traveling on board the Italian vessel MV Enrica Lexie and were held for the killing of two Indian fishermen, has given rise to several legal issues and controversies. Recent notification reportedly issued by Delhi High Court constituting the court of Chief Metropolitan Magistrate (CMM) of the Patiala House Court in Delhi as the Special Court for conducting trial of the said two Italian marines raises some further legal issues. It is pertinent to point out that by its order dated 18 January 2013 (see, here or here), the Supreme Court of India had directed the Government of India, in consultation with the Chief Justice of India, to set up a Special Court to try the case against the said two Italian marines. On the basis of this order, when the Union Government approached the Delhi High Court, the latter has recommended the name of Mr. Amit Bansal, the Chief Metropolitan Magistrate (CMM) of the Patiala House Court in Delhi as the Special Court. It is expected that the CMM Court will be appointed as the Special Court after the said recommendation is approved by the Chief Justice of India, in accordance with the process of consultation mentioned in aforesaid Supreme Court order. However, there are certain doubts whether the CMM Court will be legally competent to try this case, which are being discussed in this article.

It is noteworthy that the Kerala State Police has filed a charge sheet against the said two Italian marines on 18 May 2012 under Sections 302, 307, 427 read with Section 34 Indian Penal Code and Section 3 of the Suppression of Unlawful Acts against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act, 2002.

Clause (a) of Section 26 of the Criminal Procedure Code (Cr.P.C.) lays down the courts which can try offences under the Indian Penal Code (IPC), and its relevant part is reproduced below:

“26. Courts by which offences are triable.— Subject to the other provisions of this Code,—

(a) any offence under the Indian Penal Code (45 of 1860) may be tried by—

(i) the High Court, or

(ii) the Court of Session, or

(iii) any other Court by which such offence is shown in the First Schedule to be triable; … …”

Now, in the First Schedule to the Cr.P.C., offences under Section 302 and Section 307 of IPC are both triable only by a Court of Session. In fact, even the offence under section 304 of IPC (i.e., culpable homicide not amounting to murder), which may perhaps become relevant instead of a regular murder charge, is also triable only by a Court of Session.

Since the charge sheet filed against the two Italian marines includes offences under Section 302 and Section 307 of IPC, their trial can be conducted only by a Sessions Court. Trial by the court of Chief Metropolitan Magistrate (CMM) is not permissible under law in such a case.

Likewise, it is also pertinent to point out that as per the provisions of Section 29 of the Cr.P.C., the Court of a Chief Metropolitan Magistrate is not authorized by law to pass a sentence of death or of imprisonment for life or of imprisonment for a term exceeding seven years. On the other hand, while the punishment for an offence under Section 302 of IPC can be either death penalty or life imprisonment, the punishment for an offence under Section 307 of IPC can also be life imprisonment or imprisonment for a term that may extend to 10 years. Therefore, a CMM Court does not have the power to award these sentences prescribed under Section 302 or Section 307 of IPC. While it is true that the Government of India has reportedly given an assurance (read the full Statement of Mr. Salman Khurshid, External Affairs Minister, made in Parliament) to the Government of Italy that the said two Italian marines would not be awarded death penalty, a CMM Court will not have the power to award even other sentences mentioned in Section 302 or Section 307 of IPC (such as, life imprisonment or imprisonment for a term for or beyond seven years).

In view of these reasons, constituting a CMM Court as the Special Court for conducting trial of the aforesaid offences may be legally impermissible.

I can understand if the aforesaid case was referred to the CMM Court of Patiala House in Delhi for the limited purpose of the provisions of Section 209 of Cr.P.C., as the “committal” court, for committing the said case to the Court of Session. But, in that case, it would have been necessary that a Court of Session should have been recommended for being designated as Special Court. However, the aforesaid news reports clearly (here and here) indicate that the said CMM Court itself is being constituted as the Special Court, which will be dealing with the framing of charges and conducting the trial on a daily basis. In fact, under Section 228 of Cr.P.C., the power to frame charges in a Sessions triable case also lies with a Court of Session, and NOT with a Court of Magistrate (including the “committal” court exercising powers under Section 209 of Cr.P.C.).

Therefore, in my considered opinion, it is not permissible to constitute a CMM Court as the Special Court for conducting trial of the aforesaid case against the two Italian marines. I hope that the concerned authorities take the corrective action at the initial stage itself in order to avoid legal complications in future.

[Note: What is mentioned in this article is based on the news reports appearing in various newspapers. I have tried my best to obtain a copy of the notification / order of Delhi High Court in this regard, however I could not get it. In the absence thereof, I have tried to read as many news reports on this issue as is possible to get the best possible information. In fact, this news report in The Hindu newspaper shows that Justice Mr. D. Murugesan, Chief Justice of Delhi High Court, himself has told that newspaper that “The CMM court would try the case in accordance with the Supreme Court’s January 18 judgment”.]

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate, holds Ph.D. in Constitutional Law, and is author of 3 law books. He is the founder of this law portal. Read more by clicking here. List of his articles. List of his Forum Replies. Email: info@tilakmarg.com

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